JUDGMENT : Gopal Krishan Vyas, J. Instant jail appeal has been filed by the accused Nathiya @ Nathu Lal against the judgment dated 14.3.2007 passed by learned Additional Sessions Judge (FT) No. 1, Udaipur in Sessions Case No. 56/2006 by which the learned Trial Court convicted the accused appellant Nathiya @ Nathu Lal for committing offence under Section 302 I.P.C. and passed sentence of life imprisonment along with fine of Rs. 5,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment. 2. As brief facts of the case, upon oral statement made by the deceased Narda at Primary Health Centre, Parsola on 11.3.2006 at 5 P.M. to the witness PW-9 Bheru Singh, F.I.R. No. 25/2006 (Ex.P-19) was registered at Police Station Parsola, District Udaipur on 11.3.2006. In the statement (Ex.P-1) made by the deceased Narda, it was alleged that on 11.3.2006 at about 4 P.M. in the evening, I was in my home along with my Jethani Smt. Hakri wife of Roopa Meena, when we were talking, ail of sudden my brother in-law accused Nathiya came there and asked that my brother has died what you are doing here, I will not allow you to reside here. In reply Smt. Narda said that I am having small children, I cannot leave this place with my children. Upon refusing, the accused appellant gave threat to her that if you will not leave from this place then I will kill you. While saying so, he inflicted injury by knife (Churri), due to the said injury, I fell down and upon crying of my Jethani, Hakri, Roopa S/o Rama Meena, Deva immediately came there but Nathiya ran away from the place of occurrence. The deceased stated in her statement that after incident her family members took her to hospital for treatment, therefore, action may be taken against accused Nathiya. 3. The above statement of deceased were recorded by PW-9 Bheru Singh at Primary Health Centre, Parsola, thereafter, due to serious condition, deceased Smt. Narda was referred to the Udaipur for treatment by the doctor along with Constable Shambhu Lal Belt No. 653, thereafter at 6.30 P.M. on 11.3.2006, F.I.R. was registered at Police Station Parsola for offence under Section 307 I.P.C. against the accused Nathiya @ Nathu Lal. 4. 4. After registration of F.I.R. when deceased Narda died, then offence under Section 302 I.P.C. was added and investigation was commenced. The site was inspected by the Investigating Officer on 12.3.2006 and site memo Ex.P-2 and panchnama of dead body Ex.P-4 was prepared in front of five persons. Accused Nathiya was arrested at 5.30 P.M. on 12.3.2006 and upon his information under Section 27 of Evidence Act, weapon 'Churri' was recovered vide Ex.P-11 in front of two witnesses Ramlal and Rama. The site plan Ex.P-12 of the place from where 'churri' was recovered was also prepared. The postmortem of dead body was conducted on spot at 9.15 A.M. on 12.3.2006 and postmortem report Ex.P-16 was also prepared. In the postmortem it is mentioned that there was one stab wound upon the stomach of deceased and cause of death was hypovalaemic shock caused by visceral injury leading to major blood loss. 5. After completion of investigation, challan was filed against the accused appellant in the Court of Additional Chief Judicial Magistrate, Dhariyawad, District Udaipur from where case was committed to the Court of Sessions Judge for Trial. The learned Sessions Judge transferred the case for trial in the Court of Additional District Judge (FT) No. 1, Udaipur. 6. Learned Trial Court after hearing arguments upon charge, framed charge under Section 302 I.P.C. but accused appellant denied charges levelled against him and claimed trial. 7. In the trial, statement of 14 prosecution witnesses were recorded including the eye-witness PW-1 Hakri and number of documents were exhibited in the trial. 8. After recording prosecution evidence, statement of accused-appellant were recorded under Section 313 Cr.P.C. in which appellant denied all the allegations levelled against him and in spite of granting an opportunity, no evidence produced by him in his defence. 9. Learned Trial Court decided the case vide judgment dated 14.3.2007 and convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for life imprisonment along with fine of Rs. 5,000/-. 10. In this jail appeal, the appellant is challenging validity of judgment dated 14.3.2007 passed by Addl. Sessions Judge (FT) No. 1, Udaipur on various grounds. 11. Learned Trial Court decided the case vide judgment dated 14.3.2007 and convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for life imprisonment along with fine of Rs. 5,000/-. 10. In this jail appeal, the appellant is challenging validity of judgment dated 14.3.2007 passed by Addl. Sessions Judge (FT) No. 1, Udaipur on various grounds. 11. Learned Amicus Curiae Shri Dilip Sharma vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt for offence under Section 302 I.P.C. because even if entire evidence of prosecution is accepted then also petitioner cannot be convicted for offence under Section 302 I.P.C. for the reason that as per allegation of prosecution, only one injury was inflicted by him and there is no allegation for repeated blow. While inviting attention towards the opinion of the doctor for cause of death in the postmortem report, it is submitted that cause of death was blood loss due to injury and upon assessment of evidence, it is found that proper treatment was not available at Primary Health Centre, Parsola, therefore, the deceased Narda was referred to Udaipur hospital but before reaching Udaipur she died due to blood loss. 12. Learned Counsel for the appellant submits that upon assessment of entire evidence, it is a case of culpable homicide not amounting to murder because although the injury was caused by sharp edged weapon 'churri' but as per allegation of prosecution, only one injury was inflicted to the deceased by the accused, thereafter, he ran away from the place of occurrence. 13. Learned Amicus Curiae submits that appellant is not challenging the incident but challenging finding of conviction under Section 302 I.P.C. because all the ingredients of murder are not in existence in this case, so also the sole eyewitness Hakri turned hostile and did not support the prosecution story, therefore, the conviction and punishment imposed by the Trial Court under Section 302 I.P.C. may kindly be altered to Section 304 Part-I I.P.C. In support of his argument, learned Amicus Curiae is relying upon the judgment of the Hon'ble Supreme Court in the case of State of H.P. v. Ram Pal reported in (2006) 2 SCC (Cri.) 165, Arjun v. State of Maharashtra reported in 2012 Cr.LR. (SC) 506, Dayanand v. State of Haryana reported in 2008 Cri.L.J. 2975 and recent judgment of Hon'ble Apex Court in the case of Ahmed Shah & Anr. v. State of Rajasthan reported in 2015 Cri.LJ. 1398 and submits that on the basis of above judgments, the conviction of the accused appellant may be altered from the offence under Section 302 I.P.C. to Section 304 Part-I I.P.C. 14. Per contra, learned Public Prosecutor opposed the above prayer and submits that although PW-1 Hakri turned hostile but her testimony cannot be ignored for the purpose of proving the incident because in the examination in chief, she has categorically stated that injury was inflicted by 'churri' to deceased and before that accused used filthy words against her and gave threatening to leave the place. Learned Public Prosecutor vehemently argued that prosecution has proved its case beyond reasonable doubt for offence under Section 302 I.P.C. because weapon 'churri' was recovered as per information given by the accused-appellant upon which blood was found and upon clothes of deceased and all the articles were sent to the Forensic Science Laboratory, Udaipur gave its report Ex.P-23 on 24.4.2006 in which blood of A group was found upon clothes and knives recovered as per information given by the accused, therefore, it is a case in which Trial Court has rightly arrived at the finding that accused-appellant is guilty for offence under Section 302 I.P.C. because with intention he went on the spot and caused injury by sharp edged weapon to the deceased, therefore, there is no strength in the argument of learned Amicus Curiae that his conviction may be converted from offence under Section 302 I.P.C. to Section 304 Part-I I.P.C., therefore, this appeal may be dismissed. 15. After hearing learned Counsel for the parties, we have minutely examined the entire evidence. Upon assessment of arguments advanced by learned Amicus Curiae in the light of evidence on record, it is found that only one injury was caused by the accused-appellant to the deceased Narda. It is also not in dispute that deceased was taken to the hospital which is Primary Health Centre, Parsola where after necessary treatment, the deceased was referred to Udaipur hospital for further treatment due to non-availability of treatment. It is also not in dispute that deceased was taken to the hospital which is Primary Health Centre, Parsola where after necessary treatment, the deceased was referred to Udaipur hospital for further treatment due to non-availability of treatment. In the statement of deceased Narda, it was categorically stated that injury was caused by accused-appellant after giving threat to her on spot and due to that injury blood came out and immediately she was taken to the hospital. We have perused the postmortem report Ex.P-16 in which PW-1 Mohd. Arif gave his opinion that cause of death of deceased was heavy blood loss as a result of injury. There is a note in the statement of deceased Ex.P-1 recorded by PW-9 Bheru Singh which reads as under: " ex:gk Jherh ujnk ds isV ij vkbZ pksV ds ckjs esa ,e0vks0 lkgc ls ckrphr dh xbZ rks xaHkhj i`dfr dh gksuk crk;k o mn;iqj bykt gsrq jsQj fd;kA bl ij dkuh] 'kaHkqyky 653 ds ex:gk dks mn;iqj ds fy, jokuk dh tk jgh gSA " 16. The aforesaid note clearly reveals that proper treatment was not available at Primary Health Centre, at Parsola. We have also perused the cross-examination of doctor PW-1 Dr. The aforesaid note clearly reveals that proper treatment was not available at Primary Health Centre, at Parsola. We have also perused the cross-examination of doctor PW-1 Dr. Mohammad Aarif in which following statement is given by him which reads as under: " iqfyl vk;h FkhA ml le; ucZnk ds bykt esa yx jgk Fk vkSj gekjs LVkWQ ds yksx Hkh mlesa yxs FksA ucZnk ds bykt ds le; diqj flag esy ulZ] LVkWQ ulZ] larks"k dVkjk] okMZ ckW; cky eqdqUn 'kekZ] okMZ ckW; fQesy eatw vkfn ekStwn FksA ;g dguk xyr gS fd iqfyl ucZnk ds LVsVesaV fy;s Fks rc eSa vius pSEcj esa gwWaA cYdh eSaus mldks dgk Fkk fd cksy] iqfyl dks dgk Fkk fd blds LVsVesUV tYnh yksA LVsVesUV ysrs oDr ucZnk ds ifjokj okys ysfMy tsUV~l vkSj n'kZdx.k gekjk LVkWQ] iqfyl okys FksA ucZnk dh pksVksa dks eSaus uki dj ns[kk FkkA ;g dguk lgh gS fd vxj dksbZ O;fDr ,DlhMsUV ls udqyh vkSj /kkjnkj yEch oLrq ij fxj tk; rks ,slh pksV vkuk laEHko gSaA iksLVekVZe fnukad 12-03-2006 dks fd;k FkkA iksLVekVZe eSaus ucZnk ds ?kj ij fd;k FkkA ;g dguk xyr gS fd eSaus bykt djus ds ckn ucZnk ds [kwc cguk cUn gks x;k FkkA cYdh jsQj fd;k Fkk rc Hkh mlds [kwu cg jgk FkkA yxkrkj mldh gkyr fcxM+rh tk jgh Fkha ;g dguk xyr gS fd ucZnk dks mipkj ds ckn eSa vius psEcj esa pyk x;k gwWaA " 17. Upon perusal of above statement, there is no doubt that proper treatment was not available at Primary Health Centre, Parsola, therefore, deceased was referred for further treatment to Udaipur and on the way, she died due to blood loss. 18. Upon facts of the present case, we have examined the case in the light of Exception 4 of Section 300 I.P.C. in which it is provided that if offender has not taken any undue advantage and not acted in cruel or unusual manner, then obviously offence would fall under Section 300 I.P.C. Exception 4. In this case, as per allegation of prosecution, only one injury was caused and there is no allegation of repeated injuries. 19. Hon'ble Supreme Court in the case of in the case of Vijay Ramkrishan Gaikwad v. State of Maharashtra and Anr. reported in (2012) 11 SCC 592, considered the identical question and following adjudication has been made on the legal issue which reads as under: "8. 19. Hon'ble Supreme Court in the case of in the case of Vijay Ramkrishan Gaikwad v. State of Maharashtra and Anr. reported in (2012) 11 SCC 592, considered the identical question and following adjudication has been made on the legal issue which reads as under: "8. Having said that and keeping in view the fact that the appellant used a knife and chose the abdomen of the deceased for inflicting the injury as also keeping in view that nature of the injury itself which was sufficient in the ordinary course to cause death, it is a case that would squarely fall within Part I of Section 304 of the I.P.C. We may in this regard refer to the following passage from the decision of this Court in Jai Prakash v. State (Delhi Administration), (1991) 2 SCC 32 : "13. ... when a person commits an act, he is presumed to expect the natural consequences. But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended cause that particular injury. In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case. However, as pointed out in Virsa Singh's case the weapon used, the degree of force released in wielding it, the antecedent relation of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors. These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same. Likewise there may be circumstances in some cases which attract the first exception. In such cases different considerations arise and the Court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 I.P.C. is attracted." 9. We accordingly allow this appeal in part, set aside the conviction of the appellant for the offence punishable for murder under Section 302 I.P.C. and convict the appellant for culpable homicide not amounting to murder punishable under Section 304 Part I of the I.P.C. and sentence him to undergo rigorous imprisonment for ten years. The fine of Rs. 20,000/- and sentence in default of payment of fine awarded to the appellant shall remain unaltered." Similarly, in the case of Abdul Nawaz v. State of West Bengal reported in AIR 2012 SC 1951 , following adjudication has been made by the Hon'ble Supreme Court which reads as under: "16. The appellant was interested only in having the dinghy back. That could be done only by removing the obstruction caused by the deceased who was resisting the attempt. Pushing the deceased into the sea could be one way of removing the obstruction not necessarily by killing the deceased. Having said that we cannot ignore the fact that the deceased had sustained a head injury and was bleeding. Pushing a person into the sea, with a bleeding head injury may not have been with the intention to kill, but it would certainly show the "intention of causing a bodily injury as was likely to cause death", within the meaning of Sections 300 and secondly 304 Part I of the I.P.C. The appellant having assaulted the deceased with a dao and having thereby disabled him sufficiently ought to have known that pushing him into the sea was likely to cause his death. Pushing the deceased into the sea was in the circumstances itself tantamount to inflicting an injury which was likely to cause the death of the deceased. The High Court has gone into the question whether the deceased knew or did not know swimming. Pushing the deceased into the sea was in the circumstances itself tantamount to inflicting an injury which was likely to cause the death of the deceased. The High Court has gone into the question whether the deceased knew or did not know swimming. But that issue may have assumed importance if the deceased was not disabled by the assault on a vital part of his body. In the case at hand he was assaulted with a sharp edged weapon on the head and was bleeding. His ability to swim, assuming he knew how to swim, was not, therefore, of any use to him. The injury on the head and the push into the sea have, therefore, to be construed as one single act which the appellant ought to have known was likely to cause death of the deceased. Even so Exception 4 to Section 300 of the I.P.C. would come to the rescue of appellant inasmuch as the act of the appellant even when tantamount to commission of culpable homicide will not amount to murder as the same was committed without any pre-meditation and in a sudden fight, in the heat of passion, in the course of a sudden quarrel without the offender taking undue advantage or acting in a cruel or unusual manner. The prosecution evidence sufficiently suggests that a scuffle had indeed taken place on the dinghy where the appellant and his companions were trying to recover the dinghy while the deceased was preventing them from doing so. In the course of this sudden fight and in the heat of passion the appellant assaulted the deceased and pushed him into the sea eventually resulting in his death. The act of the appellant is more appropriately punishable under Section 304 (I) of the I.P.C. instead of Section 302 of the Code invoked by the Courts below. The appeal must to that extent succeed." 20. We have considered the entire evidence of present case in the light of above cases. The act of the appellant is more appropriately punishable under Section 304 (I) of the I.P.C. instead of Section 302 of the Code invoked by the Courts below. The appeal must to that extent succeed." 20. We have considered the entire evidence of present case in the light of above cases. In this case although injury was inflicted upon stomach but upon statement of deceased and other witnesses, coupled with medical evidence, we are of the opinion that main ingredients to cause death is absent but we cannot loose sight of the fact that injury which is alleged to be caused by the appellant was of serious nature, therefore, in absence of evidence of intention and upon the fact that only one injury was caused the offence cannot travel beyond offence under Section 304 Part I of I.P.C., therefore, appellant should have been convicted for offence under Section 304 Part-I I.P.C. instead of 302 I.P.C. 21. In view of aforesaid discussion, instant appeal is partly allowed. The conviction and sentence awarded to the accused appellant under Section 302 I.P.C. is hereby altered to Section 304 Part-I I.P.C. and the sentence of life imprisonment awarded to appellant under Section 302 I.P.C. is reduced to ten wars rigorous imprisonment while maintaining the fine.